19 October 2018
International investment court: to be or not to be? | article by Dmitry Kaysin and Maria Demina, “Journal of foreign legislation and comparative law” #4(71) 2018

In recent years, the criticism of the existing form of examining investment disputes with states has increased significantly. Its source is not only states that are dissatisfied with the results of consideration and awarded multi-million compensations, but also arbitrators who directly resolve such disputes within the framework of international arbitration. The article presents an analysis of proposals for reforming the system of international investment arbitration, primarily the creation of a supranational investment court, both within the framework of the UNCITRAL activities, and within the framework of the European Commission’s initiatives.

The proposals are analyzed through the prism of the historical development of the entire system of investment arbitration, and also taking into account the current status of development. On the one hand, investment arbitration remains a popular form of dispute resolution among investors. As of December 31,2017, only 650 claims have been filed with the International Center for the Settlement of Investment Disputes. On the other hand, criticism of the existing system of investment arbitration is also growing. A large number of comments concern the procedure for appointing members of the arbitral tribunal, when the investor and the state are given the right to appoint almost any arbitrator at their discretion. At the same time, the polarization of the arbitrators to those who support states more often and those who take an investor approach is obvious. The costs of investment arbitration, including arbitrators’ fees, raise questions. Many investment disputes are held in closed mode and the associated opacity of the procedure is alarming.

Investment arbitration will be reformed in the near future. At the same time, the creation of supranational courts will continue in the framework of economic associations of states around the world.

Keywords: investment court, international arbitration, investment law, international law.

By Dmitry Kaysin, counsel; Maria Demina, Associate at Egorov Puginsky Afanasiev & Partners.

Please follow the link to find the full text of the article (in Russian).